offer no difficulty of construction on the abolition of the Legislative
Council. The reference in subsection 'd to both Houses of the Legis-
lature of the State would also, it is maintained, constitute no legal
difficulty in giving effect to the provisions of section 33 of 5 & (i Vict,
c. 76. because there is an alternative coiiise therein j)rovided for giving
publicity to t:ie Royal assent to a reserved Bill — viz., by message to
Parhament or a proclamation.
The point raised by the memorialists with regard to this Act was
referred to in the judgment of the Full Court in Taylor's case (1917
S.R. Queensland 208 at p. 237), but was a))parently regarded as negli-
gible by the High Court on a])peal.
43. It is urged by the memorialists that " the question of a radical An.swcr to
change in the State Constitution, established and working satisfactorily "K-'morial,
now for nearly 00 years, demands a broader justification than the "" ^'**' '"''
ruthless act of any party temporarily in power. It is clearly an
Imperial question calculated to affect the status of all Colonial Legis-
latures under wliat may become a Federated Empire."
So far as this objection is grounded u])on allegations of fact it is
sufficient to say that the allegations are not true.
It is not a fact historically that the bicameral system with a nominee
chamber has worked satisfactorily in (Queensland. An examination
of our annals will show that there have l)een ri^peated conflicts between
the Houses. The Legislative Council has, on numberless occasions
and notwithstanding the (iiH'ision of the Judicial Committee of the
Privy Council, asserted an unwarranted control over money Bills.
Every Government that has been returned to jiower pledged to reform
has met with persistent hostility from this chamber. The existence
54
on our Statute Book of " The Parlmmentary Bills Referendum Act of
1908 " is irrefutable evidence of the necessity which existed to possess
in the people an over-riding authority notwithstanding the rejection
of Bills by the Legislative Council.
Again, it is not a fact that this Bill is the ruthless act of a party
temporarily in power. This party has been in power continuously
since 1915, and the history of the attempt to enact this Bill as a law
is the history of a deliberate and strenuous campaign against the forces
of reaction and entrenched vested interests.
The statement with which this objection concludes is also in the
opinion of Ministers entirely unfounded. The question now in issue
affects, in their opinion, iieither any Imperial interest, in the sense
in which that expression is used when the powers of self-governing
States are under consideration, nor the status of any Colonial Legis-
lature. The fact that some other State may be induced to follow the
example of Queenslaud in ridding itself of a fetter on the popular will
is not germane to the ])resent inquiry.
Aiid to 44. The objection grounded on the proviso to Article 22 of the
subpais. {b) Order in Council of 6th June, 1859, is, it is conceived, sufficiently
and (c). answered by the judicial decisions in Taylor's case and McCawley's
case already adverted to, and the objection that the status of Queens-
land as a State of the Commonwealth would be fatally prejudiced is
also dealt with in the same connection.
And to 45. The memorialists assert that " some revising chamber is
subpar. {d). necessary in order to obtain equity, harmony, and consecutiveness
in legislation, as a single chamber, unbridled and acting before election
heat has time to cool, is tempted to force measures through that are
partisan, haphazard, and due to momentary impulse. No alternative
proposal for a second chamber, whether elective or otherwise, has
at any time been submitted to this Council by the Legislative As-
sembly."
So far as a second chamber claims to be a revising chamber, it
must, it is conceived, also claim that it possesses those qualities and
that settled habit of calm deliberation, judicial temper, and wide
experience which eminently fit it to correct and clarify legislative
proposals, or, in a word, that the revising chamber is never partisan.
This may be a counsel of perfection for a Utopia. But the experience
w^hich Ministers of this Government have had of the Legislative Council
is that it has willingly and even anxiously lent itself for party purposes
as an instrument in the hands of the leaders of the opponents of the
Government in the rejection or emasculation of salutary measures of
reform. It has consistently acted as a powerful and often overwhelm-
ing addition to the strength of the forces opposed to Labour.
The further claim that the representative chamber is apt to be
inexperienced, iiii prudent and reckless in the formulation and carriage
of its j)ro])osals is equall)^ witiiout foundation in fact. The Government
always commands the services of expert advisers both on legal, ad-
ministrative and social questions. Mistakes in details could always
be corrected. Errors in policy must be left, as always, to the criticism
of experience.
55
The true safeguards against iriteiiiperate or unjust legislation are
in the first place the responsibility of the electerl member to his elec-
torate, and in the second place the sense of honour, justice and prudence
which is the sliining mark of the genius of the British race, and has
with the rarest exceptions, been conspicuously present in the actions
of its deliberate assemblies.
The suggestion of the memorialists that it was the duty of the
Legislative Assembly to submit to the Council some measure for the
reform of that chamber is an admission that reform is necessary.
Why, then, did the Council not propose it to the people at any time in
the long period during wliicli lliis measure has been a question of
practical ])olitics ?
46. The suggestion of the memorialists that " the abolition of the And to
Legislative Council would remove all checks upon the dominant party sul)i)ar. (e).
for the time being in the Legislative Assembly, by referendum or other-
wise, and that the people would be robbed of their right of appeal,"
is one which Ministers view with profound surprise as coming from these
memorialists.
'' The ParUamentarij Bills Referendum Act of 1908 " was expressly
directed against the conservative and reactionary tactics of the then
meml)ers of the Jjegislative Council, ithe leaders of whom are now amongst
these memorialists. Moreover, the memorialists and their friends,
by their repeated refusals to accept the principles of the Popular
Initiative and Keferendum Bill, have themselves evinced in a conspicu-
ous manner that they are stoutly opposed to the people possessing,
by direct action, either a right to request legislation or to express their
approval or disapproval of measures that have passed through Parlia-
ment.
But, in the o])inion of Ministers, the true answer to this objection
is that the eft'ective check on mijust or immature legislation is the
l)opular will expressed at the ])olls, when members seek re-election in
confirmation of their conduct in I'arliament.
47. The suggestion that by the abolition of the Legislative Council And to
the judiciary or certain public officers would be placed at the mercy ^""* l'*^" '•^^'
of the dominant party in a single-chamber legislature is one which it
is surprising to find in a serious memorial of this character. It is such
as one might expect to hear stormed from the hustings by an impetuous
candidate, or issuing from a zealous opponent of the measure in the
heat of Parliamentary debate. The true custodians of the public
conscience in a self-governing State must always be the electors.
The real safeguard against injustice on the part of a representative
legislature is public reprobation, signified against the delinquents
;it t li(^ polls. Ministers have yet to learn that the position of the judiciary
or of |)ublic ofiicials in Ontario, British Columbia, or Manitoba is re-
ganlt^d as less secure lli.iu in Nova Scotia.
48. The objection grounded uj)on a consideration of "' The Conunon- And to
wealth of Australia Constitution Act " and " The Australian States subpar. (g).
Constitution Act, 1907," has elsewhere been dealt with.
56
And to
subpar. {h).
Aiid to
subpar. (i).
Defects of a
nominee
cbanibei'.
Reference
under 3 &
^^'m. IV.
cap. 47 not
necessary.
49. As in tlie opinion of Ministers the adoption of a single-chamber
legislature directly representing and responsible to the people, elected
on a universal franchise in properly constituted electoral districts
capable of readjustment as the growth and fluctuation of population
may require, and forced to seek re-election at frequent intervals, is
in no sense an undermining of constitutional safeguards, but on the
contrary will serve in a marked degree to foster the political intelli-
gence of the people and their chosen representatives and quicken
the sense of public responsibility, it is not considered necessary to
lengthen this paper by reference to the present world-wide turmoil.
Ministers are profoundly convinced that the way to the settled
peace and prosperity of the community hes in the faithful discharge
of duty in every department of the national life. Any body of persons
which, from motives of laissez faire or seK-interest, has had the power
to impede the faithful discharge of duty should be shorn of that power.
50. The memorialists allege that " the Legislative Council acts
as the permanent co-trustee of the public safety and welfare."
Surely this is an unfortunate analogy. In a self-governing community
the people are sui juris- — a status of political manhood has been attained
■— and there is no reason why all the rights and responsibiUties of man-
hood should not be wilhngly, nay zealously, exercised and assumed
on their behalf by those who act, or say they act, as trustees of those
rights and responsibiUties.
Ministers are of opinion that abundant evidence is afforded in this
paper that the memorialists and those of their political colour have
consistently and vigilantly opposed the popular wdll over a long
course of years.
51. Ministers moreover would urge that a nominee chamber, the
members of which hold office for life, never does, and never can in the
very nature of things, keep in touch with popular aims and aspira-
tions. Their actions even when benevolent partake of the paternal,
that is to say they make a grant to the people, not as of right but ex
gratia. The people cannot be a suppliant to a nominee chamber.
But when the people demand some reform which appears to affect
vested (jjarticularly moneyed) interests, no matter how just such
demand may be, the strong temptation is always presented to members
of such a Council to preserve intact interests in which they themselves
are much concerned, by rejecting the demand.
Such a nominee chamber is democracy's strait- jacket, the thing
which prevents it from doing what it wishes to do.
The citizens of a free community should not any longer be so
hampered that in their desire for progress they must ask for concessions
which may be delayed until they have lost their grace, or that they
cannot claim rights which may be denied until extorted through fear,
or that justice may be perverted, delayed or denied to them until it
is grudgingly or churlishly given when it can no longer be withheld.
4 52. In view of all the foregoing considerations. Ministers respect-
fully submit that no useful purpose would be served by referring the
57
question of the validity of the proposed Act to the Judirial Committee
of the Privy Council for decision under the provisions of ?> & f Wm.
IV. cap. 41.
Ministers liiiinbly submit, moreover, that Mis Majesty could not
with propriety be advised t(j refer the abstract ({uestion of law as to
the validity of the j)roposed measure to the Judicial Committee of
the Privy Council, as it is conceivable that the effect and validity of the
Act might at some future time be brought before that Committee
sitting as a Court of Ay)peal, because should such case actually arise
the law on the matter- would be pre-determined by the Conunittee in
an extra-judicial proceeding. {See Doutre, Constitution of Canada,
edn. 1880, page 348 ; Todd, Parliamentary Government in the
Colonies, 2nd edn., page 842 ; Harrison Moore, Constitution of the
(Commonwealth of Australia, 2nd edn., page 209). Ministers desire
to point out that, according to the shorthand notes of the application
to the Judicial Committee for special leave to appeal in Taylor's case
(which notes, although not officially reported, may be found in 1918
State Reports Qld., page 194), Viscount Haldane and Lord Dunedin,
although not expressing any opinion whatever on the merits of the case,
apparently recognised (pages 19(5-7) that a reference properly instituted
under 3 & 4 Wm. IV. cap. 41 should partake of the character of a
litigation, with parties representing the various interests.
53. Assuming then that there exists no objection in law to the ^'*^^ .^"®^*^'""
grant of the Royal Assent to this Bill, the question arises whether such ^^^^\ f^
1-1111 11 apart from
assent ought to be withheld on any other ground. its lecrai
aspect.
54. In the opinion of Ministers the j)rinciples of the Bill do not in Imperial
any way impinge on Imperial interests. It is not inconsistent with interests not
obhgations imposed upon His Majesty by Treaty. It does not, it is •"^'o'^'®"-
humbly submitted, prejudice His Majesty's prerogative or the rights
of property of His Majesty's subjects not residing in the State, or the
trade or shipping of the United Kingdom or its Dependencies. It is
not repugnant to the law of England.
55. In the opinion of Ministers this Bill is concerned merely with a It is a matter
matter of domestic ])olitics over which this State from the date of '"ternal
separation from New^ South Wales has had full control.
56. The State of Queensland when it entered upon its career as a The grant of
colony was granted responsible self-government, and when it entered respomihle
the Commonwealth of Austraha as an original State this status was government,
formally recognised and declared to be intact.
This grant of power, so noble and so generous, was surely intended
to be interpreted in an equally noble and generous spirit. The statutes
and instruments which declare the grant were not intended to be
suspiciously scrutinised to discover minute defects that might derogate
from the fullness of the grant. To each generation in its turn is given
the ])rivilege and power to shape its own ])olitical destiny. Acting
with a measure of sublime faith and prophetic vision which have been
the astonishment of other colonising powers, the propounders of the
idea of local self-government deemed it right and just that the nascent
58
Tmpeiial
policy
settled and
consistent.
Citation of
action
taken in
Newfound-
land case,
1898.
States beyond the seas should, without severing the bond of Empire
be encouraged to attain a height of social and political development
to which organised communities of free men have a right to aspire.
The basic principle is that self-government consists in the recognition
of the fact that the government of a colony in its internal affairs is
not a matter with which the Imperial Government will interfere.
The policy for the last 50 years has been consistent. Even the
strongest representations that the proj^osed policy of the self-governing
State would be a departure from uniformity, or was in the highest
degree unwise, have not induced the Imperial Government to
interfere.
57. The right of interference with or of disallowance of a proposed
measure has, it is true, never been formally surrendered by His
Majesty, but such right has been more and more sparingly exercised.
While it is true that certain Bills have to be reserved, it is humbly
submitted by Ministers that the matters so to be reserved relate to
classes of subjects which, in their Imperial aspect, affect people and
places outside the State which has proposed the legislation. This
settled policy in regard to colonies possessing responsible government
has been attended with the happiest results. Wliilst continuing to
pursue their independent course of progress and prosperity, these
colonies have jealously maintained the Imperial ties, cemented alike
by feeling and principle. In the passage of the years, the Imperial
connection, based as it has been upon sympathy with colonial aspira-
tions and modes of thought, has become more and more imposing and
attractive.
58. An instructive example of the polic}^ adopted by the Imperial
Government in relation to the internal affairs of communities possessing
responsible government is found in the proceedings in 1898 relating
to a petition by certain persons in Newfoundland for the disallowance
of a certain Bill passed by the Legislature of that Colony. {See Keith
on " Responsible Government in the Dominions," 1912 edition, vol. 2,
pp. 1041 et seq.). The protest took the ground that the proposal
embodied in the Bill had not been an issue at a recent general election
— that the Bill was rushed through the Houses of Parliament without
full consideration and opportunity for protest. It also appeared that
the Minister who had been most active in pushing the Bill through
the Legislature was the paid legal adviser of the person whom the Bill
was designed to benefit ; and he was compelled to resign from the
Government. The Imperial Government dechned to disallow the
Act. In Professor Keith's view {see p. 1042 to 1047), the reasons for
this course epitomize the precise duty of the Imperial Government in
regard to Colonial Legislation, and while they add theoretically no
new principle to those by which Secretaries of State had long been
guided, they apj)ly an old principle in circumstances which formerly
would probably have been deemed to exclude the ordinary rules
because of the manifest gross impropriety of the Act in question.
The following passages from the despatch of the Secretary of State
are quoted, as they appear to be very appropriate to the present case : —
59
" lU. Ill so far as tlic demand for disallowance is based on criticism of
the policy and details of the Act, I have already indicated that where no
frnperial interests are involved, or ntdcss the ineasun' was so raflically
vicious as to retleet discredit on tiie Eini)ire of which Newfoundland forms a
part, it would be improper for Her Majesty's Government to intervene
in what is essent ially a matter of local finance, the policy of which is a matter
for the Government and l^egislature of the Colony.
'• 11. But it is alleged, as a further reason for intervention, that though
the subject was one of far-reaching consequence to the future of the Colony,
no allusion to the contract was made in the speech from the Throne at the
opening of the session of the liCgislaturc, and tiiat when it was brought before
that body shortly after the beginning of the session, it was jnished hurriedly
throu'di both Houses Ix'fore knowledge of tlie matter could have reached
the voters, and witiiout allowing due time foi' its consideration.
" 12. These charges have been dealt with l)y y<nu' Ministers in the Minute
of Council already referred to. They are questions affecting the conduct of
Ministers in the adnn'in'stration of l)usiness for which they are responsible
to the Legislature, and if the meml)ers of the Legislature have failed to
protect the interests and discharge the duties of their position they will have
to answer for tlu-ir failure to their constitntents. The fact that the consti-
tuencies were not consulted on a measure of such importance might have
furnished a reason for its rejection by the Up]K'r ( "hamber, but would scarcely
justify the Secretary of State in advising its disallowance, even it it were
admitted as a general j)rinciple of c(Mistitutioiial goverimient in Newfound-
land that the Legislature has no right to entertain any inesaure of first
importance without an immediate mandate fiom the electors.
'â– 13. Nor is the fact that I have been nrged to advise the disallowance
of the Act by petitions alleged to be signed by more than half of the registered
electors of the ( 'olony one which can be proi)erly considered by Her Majesty's
Government in this connection. The Act was passed by the Assembly,
elected so recently as November, 1897, by an enormous majority, only five
members out of a House of 30 voting against it, and in the Legislative Coinicil,
as I gather from the last paragrajih of your dispatch of April 30, it was
received with practical unanimity, only one member having spoken against
it, and even he did not carry his o])position so far as to record his vote
against the measure.
" 14. It is not the duly of Her Majesty's CTOvernment to attempt the
task of deciding whether the action of the Legislature has been in accord
with the opinion of the electorate. Even a Governor, who is to some extent
in touch with local opinion, would be taking a serious step if, in response
to petitions such as have been addressed to me, and against the advice of
his ^linisters, he refused to assent to a ineasui-e of local concern which had
been duly passed by the Legislature ; and if he faileil to find other Ministers
prepared to assume responsibility for his action, and able to secure the
support of the Legislature, his position woidd l)ecome nntenable. Any
such step on the part of a Governor would have to be taken entirely on his
own motion. It is essential that for every act of the Governor in local
matters full resi)onsibility sliould attach to a Ministry amenable to the
Colonial Legislature.
" 15. In advising Her Majesty as to the exercise of her prerogative of
disallowance, the Secretary of State has to consider the legislation submitted
from a still more restricted point of view than the Governor.
" 16. That prerogative is a safeguanl for the protection of those intercjsts
for which the Secretary of State is res])onsible to Her Majesty and to the
Imperial Parliament. To advise its exercise in cases where only local
interests are concerned would involve the Imperial Government in liabihty
for matters of the control of wliich it has ilivested itself, and for which the
Colony has accepted full responsibility.
60
Citation of
South
Australia
case, 1911.
The settled
rule of non-
intervention
ought to be
applied to
the present
case.
" 21. The considerations which preclude me from advising Her Majesty
to disallow the Act apply equally to the alternative request, that I should
defer tendering advice to Her Majesty in regard to it until the people of the
Colony have had an opportunity of expressing their views upon the measure
********
" 25. My action has tliroughout been governed solely by constitutional
principles, on which I am bound to act, and I think it desirable that it should
be made quite clear that, in accepting the privilege of self-government,
the Colony has accepted the full responsibilities inseparable from that
privilege, and that if the machinery it has provided for the work of legislation
and administration has proved defective, or the persons to whom it has
enti-usted its destinies have failed to discharge their trust, they cannot look to
Her Majesty's Government to supplement or remedy these defects, or to judge
between them and their duly chosen representatives."
59. A more recent declaration of the same policy is to be found
in the despatch of the Secretary of State for the Colonies declining
Imperial intervention on the occasion of the disputes between the
two Houses of the State of South Austraha on the Veto Bill in the
year 1911. {See, for a short reference to the matter, Keith on " Respon-
sible Government," edition 1912, pp. 629 and 1620, 1621.)
GO. The Newfoundland case is an instance of the sagacious applica-
tion of a rule of settled policy to a case where the extraordinary and
unparalleled character of the contract approved by the Act had already
met with adverse criticism by the same Secretary of State in a published
despatch, and where the circumstances attending the passage of the
measure could be and were viewed by many in a sinister light. That
rule of non-intervention should dfot'tiwi be apphed to the present case
because —
(a) The power to amend the Constitution of Queensland is
expressly reserved to the Legislature of Queensland by
Imperial Statutes and instruments.
(b) Long before the accession of the Labour party to office the